Teaching Tips to Think about Early in the New Semester- By Steven Friedland

With the beginning of a new semester upon us, these thoughts and tips are a great thing to keep in the back of everyone’s mind whether you are a student or a professor.  This great post was done by Steven Friedland.

Flexibility and Mobility in Law School Learning

As a professor who has been teaching for more than two decades, it is easy to feel like a dinosaur in classes populated by students mostly in their 20s.  But within that notion lies the fact that not only do ages change, but cultures as well.  It is evident that within the born-digital generation, cultural understandings, particularly involving learning, are different than mine.

While I think cross-cultural competency is more important than ever in this global era, it also applies to us teaching dinosaurs.  I learned in law school in a linear and fixed fashion – go to class, take notes, go to the library, study and prepare for the next class.  Based on studies and my own anecdotal evidence, there is an increasing preference for mobility and flexibility in learning.  I am becoming a believer in both — using Web platforms like TWEN, Blackboard or Moodle as integral parts of a course, and allowing students to have flexibility in where and when they learn.

I am now experimenting in doctrinal courses to include several flex classes — audiotaped, with an option to take each over a 24 hour period in a self-paced fashion.  These self-paced classes are combined with deliverables — writing an answer to a problem based on the class material and then posting it on the Web platform, or doing some other relevant task based on the material to ensure that some form of learning has occurred.  So far, these classes have been well-received; to my surprise, students like the flexibility about when they take class as much as the remote opportunity. I am enjoying shaking it up in this way.  What is the saying?  Even an old dinosaur can learn….

 

Note-Taking Breaks

In a law school class, there are a variety of note-takers.  Some are the “court reporters,” taking down every word.  Some take far fewer notes, within their own organizational schemes. Many students are using computers, with note-taking programs. I also have had some “deep observers,” who appear to take no notes at all.

But all students seem to rely on the notes they take in putting a course together for deep understanding, especially in the first year of school.  Interestingly, teachers do not generally know how students are taking notes and whether those notes taken are even accurate.  This is why I have started using a colleague’s technique (yes, I like borrowing good ideas from others, no hiding there), of taking “note breaks” in the middle of a doctrinal class — allowing students to check their notes with other students, particularly about important rules, principles or insights. I usually prompt the break by asking, “What were the most important points in class so far?”  This has several effects.  Everyone perks up and the students appear present and engaged.  Students also are more likely to ask questions about what has occurred thus far.  I get useful feedback on what I have communicated well and what I have done poorly.  So all the way around, I find it to be a helpful technique. When students walk out of class, they should be able to rely on and have ready access to useful notes.

 

Retention and Retrieval

Lots of studies have been done that show experts learn differently than novices.  In any educational process, the goal is to move up the scale, from unconscious incompetence, to conscious incompetence, to conscious competence, to the highest level, unconscious competence.  I know about the lowest level, having been there in law school and many other contexts (just thinking back on the longest years of my life taking piano lessons).  The highest level of competence is epitomized by Captain Sully, the U.S. Air pilot who landed his commercial plane without engines in the Hudson River.

So what learning features are associated with experts? Experts recognize patterns of information, have deep understanding of material within a domain, organize their information well for ready access, and constantly self-monitor.  We can learn from these characteristics in law school.  It is traditional for law school professors to evaluate student performance through a single final examination, (although sometimes mid-terms are also offered).  The traditional summative evaluation framework promotes a particular type of studying.  Students study like crazy just before an exam, and then dump all of their knowledge on the test. (This approach was a familiar one for me when I was in school.) To help students progress from novice to expert, though, we should teach for long-term retention and retrieval.  This can occur through the use of numerous problems and opportunities throughout a course by which to practice organizing and storing material before a final exam, the use of structures or outlines by which to approach topics, and a greater emphasis on mnemonics, anchor words and other learning devices.   Sometimes, in our desire to cover great swaths of material, we don’t drill as deeply as we could or should.

Ten Questions to Ask Yourself Before Volunteering

As a follow-up to my previous post on “-crastination”, Creativity and the Importance of Downtime, I’m sharing a copy of my favorite handout for helping all of us, students and faculty alike, learn to engage in discernment around saying no, and yes.

TEN QUESTIONS
Ask yourself these questions

Before volunteering your time, skills & energy to ANYTHING!

  • Is there a chance I will find myself changed by this work?
  • Does this work express my values, the things I say are important to me?
  • Will this put me with people I want to know better?
  • Will doing this help me know myself better?
  • Do I enjoy thinking of myself as a person who would do this?
  • Do I have a special gift to share?
  • When I look back in a year or ten years, will I remember doing this?
  • Will this make me feel more connected or more disjointed?
  • What will I need to say NO to in order to say YES to this?
  • Will it be FUN!

 

Thanks for Maylin Harndon for sharing her version of this with me.

 

 

 

Teaching Legal Reasoning More Efficiently?

Teaching the traditional analytical skills more efficiently and effectively could provide a much needed opening for broadening the range of skills taught to all law students. In the legal academy’s version of the “socratic method”, law teachers historically taught the analytical skills” implicitly”. They demonstrated legal reasoning by pushing students away from their raw intuitions of fairness and justice to articulate rules and exceptions, while attending carefully to the inevitable ambiguities of language.

Some law teachers suggest that the process of learning to “think like a lawyer” fundamentally requires time and practice and therefore cannot be significantly speeded up.

Yet the implicit approach has been repeatedly challenged by scholars seeking to teach legal reasoning more explicitly, by naming and explaining how it works.*  (An obsession with the goal of teaching legal reasoning more efficiently was a major thread in two phases of my own legal career when I taught first year civil procedure. I struggled both to teach skills more explicitly and to provide students with opportunities to practice them.)

A recent contribution to this quest by my colleague Jane Winn grows out of her experiment teaching common law legal reasoning to undergraduates. Students were randomly assigned to use either a well-regarded study aid, or Winn’s own materials. The materials were also leavened by her own and colleagues’ experiences teaching foreign LL.M. and J.D. students coming from legal systems growing out of the European continental legal tradition.

Winn’s effort, aimed at law students, is notable in three respects. First, at twenty-nine pages it fills an intermediate-length niche: longer than a typical class “handout’, but shorter than the various book length alternatives. Second, it covers case briefing, outlining and exam questions, demonstrating how the three are related. Third, it grew out of an attempt to test her teaching method empirically using random assignment to a control group. Both law students and legal educators should find it a useful contribution.

The 2015 ABA accreditation standards may provide a laboratory in which to test efforts such as Winn’s. Standard 302 now requires law schools to adopt learning outcomes that, under subsection (b), must include legal analysis and reading; Standard 314 requires law schools to provide students with both formative assessment (feedback) and summative assessments (final “grades”); under Standard 315 law schools must engage in “ongoing evaluation of the program of education, learning outcomes, and assessment methods”. At its best this combination of more intentionally articulated outcomes, feedback to students, and program evaluation could prompt law schools to evaluate the potential for greater efficiency and effectiveness in teaching legal reasoning. I remain hopeful that enough schools will approach this task rigorously and in good faith that at least some progress can be made.

*Winn’s illustrious predecessors include:

  • Leading Legal Realist Karl Llewelyn, whose The Bramble Bush: Classic Lectures on Law and Law School have been assigned to generations of law students;
  • University of Chicago Professor and President and U.S. Attorney General Edward H. Levi, author of An Introduction to Legal Reasoning, originally published in the University of Chicago Law Review and then in book form;
  • Critical Theorist and Harvard Professor Duncan Kennedy, who took the decidedly un-Harvard step of visiting at New England School of Law in his attempt to reach beyond elite students and sharpen his skill at teaching students about the “gaps, conflicts and ambiguities” that underlie the development of the common law. He shared his insights widely with former students moving into teaching careers. produced a short volume
  • My former colleagues Pierre Schlag and David Skover, who produced a short volume early in their careers that catalogued the Tactics of Legal Reasoning (1985).
  • Richard Michael Fischl and Jeremy Paul, Getting to Maybe: How to Excel on Law School Exams (1999)
  • Leading clinical teachers Albert J. Moore and David Binder, Demystifying The First Year of Law School: A Guide to the 1L Experience (2009)

In recent decades much of the heavy lifting in legal reasoning has devolved upon teachers of legal analysis, research and writing. Among the results is a burgeoning literature proposing variations on the syllogistic Issue-Rule-Analysis (or Application)-Conclusion approach to analyzing and writing about legal problems, as well as a variety of textbooks.

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Legal Education & Civility in the Legal Profession

A recurrent theme in current critiques of legal education is the need to develop lawyers with interpersonal, intrapersonal, and leadership knowledge, skills and values, as well as the traditional analytical skills and doctrinal knowledge. (A significant portion of Chapter 6, Teaching the Newly Essential Knowledge, Skills, and Values in a Changing World in the recent volume Building on Best Practices: Transforming Education in a Changing World (Lexis 2015) is devoted to the what and how of teaching such topics.)

Opportunities to reflect on this theme abounded in early October, when I had the privilege of attending the Civility Promise Continuing Legal Education seminar in Sovana, a small hill town in southern Tuscany, Italy. Sponsored by Seattle University Law School. and Robert’s Fund, the seminar brought together fifteen attorney participants from diverse practice backgrounds. They included a retired corporate attorney and managing partner of what is now a leading global law firm, a retired trial court judge, and lawyers with criminal or civil litigation, or transactional practices in both private and government settings.

Conceived by Paula Lustbader, teacher extraordinaire and emeritus professor of law at Seattle U. in collaboration with Italian artist Sergio Tamassia, the seminar was co-taught by two exceptionally skilled presenters: Tim Jaasko-Fisher, Senior Director of Curriculum and Programming for Robert’s Fund, formerly Assistant Attorney General and then Director of the University of Washington Law School Court Improvement Training Academy, and Craig Sims, Chief of the Criminal Division of the Seattle City Attorney’s Office.

The seminar identifies three pillars of civility: consciousness, community, and creativity. After fostering each pillar within the group in a brilliantly executed mix of didactic, reflective, and creativity-facilitating teaching methods, participants are challenged to take their learning into the profession.

Each participant was drawn to the seminar for their own personal reasons and several shared compelling experiences — the opposing counsel whose business model was the shake down, the ultimately unsuccessful malpractice suit based on the theory that an attorney approaching a case with a collaborative mindset violated her duty to her client, the former colleague who cracked under pressure and – the ultimate case of incivility — murdered his opposing counsel. And all bemoaned the all-too-common misconception that the adversary system is about behaving uncivilly, rather than developing and presenting the most compelling arguments on the merits.

Concerns over incivility have led some jurisdictions to adopt mandatory civility codes and help inspire the burgeoning mindfulness movement. Like the profession, many law schools are pursuing mindfulness for multiple reasons, including encouraging civility. Whether these efforts will be sufficient to effect widespread change in individual attorney behavior and the culture of the legal profession remains to be seen. But the Civility Promise seminar provided both incentive and tools for change. We can also hope that it will inspire similar efforts in legal education.

Unmasking Assumptions about Employment Outcomes and Legal Education

In an upcoming Wisconsin Law Review article, Robert Kuehn, Associate Dean for Clinical Education and Professor of Law at the Washington University Law School, presents a cogent, well-supported and thoughtful article describing the limitations of and lessons we can learn from the existing empirical analysis correlating student enrollment in clinical education and employment outcomes.  Kuehn’s article, entitled Measuring Legal Education’s Employment Outcomes is particularly powerful because it provides a thorough empirical rejection of the claim that clinical coursework might actually harm employment outcomes, as asserted by Professor Jason Yackee and which attracted some sound-bite attention earlier this year. In what is, perhaps,  an unexpected twist, Kuehn demonstrates that using Yackee’s statistical assumptions and methodology also would produce negative correlations for those students who participate on law journals or in moot court competitions.  Kuehn argues that one can’t draw any reliable conclusion from Yackee’s 2013 model, and perhaps not from any nationwide statistical model – as opposed to a particularized analysis of one school –  on the likely effect of clinical courses (or other activities like law journal or moot court) on employment, and surely not the negative effect Yackee posits. Kuehn points out that as to clinical coursework, the available evidence (through surveys) indicates that such experiences do aid some students in securing employment.

If you, like me, still become a bit nervous about how much you actually remember from undergraduate statistics courses, do not be alarmed by this post!  You will find Kuehn’s article accessible and a quick good read, even when he is using words like “regression analysis,” “granular data” and “variable choices.”   Here are the points made in Measuring Legal Education’s Employment Outcomes which I found most helpful:

  1. Kuehn’s reminder that when one confuses correlationwith causation one is bound to come up with a “misdiagnosis.” One problem with Yackee’s analysis is the lack of granular data to calculate the true employment rate for those who took a clinic (or who did not).  In fact, the data is so poor that “the results never account for more than half of the variability in employment across schools.”
  2. Kuehn’s explanation of the “confounding effect of prestige” and bar passage on employment outcomes.
  3. The problems of validity and reliability raised by analyses which employ information from ABA questionnaires, particularly those self-reports submitted prior to 2014.
  4. The fact that “13% of law schools” provide 80% of the school-funded jobs to law graduates. Not surprisingly, Kuehn found this factor biases many results if you examine nationwide statistics. And when Kuehn removes those jobs from the statistical analysis, Yackee’s correlation with clinical education falls apart even using his own assumptions and methodology.
  5. Yackee’s model yields completely different results if one uses the US News Lawyers/judges data versus academic peer data to control for the possible influence of perceived prestige.
  6. Application of Yackee’s model to “Law Journals” and “Skills Competition” and S. Newssub-groups also show no relationship to employment outcomes!
  7. In Yackee’s model, a better ranking is “strongly associated with improved employment outcomes.” However, Kuehn points out that a “closer examination of the relationship between rank and employment indicates that this positive association, although statistically significant when applied across the entire range of top 100 schools, does not hold true for schools ranked 51 through 100 (emphasis added).” 
  8. Kuehn’s documentation of employers who require, “strongly prefer” or identify law clinic experience as a positive factor in hiring such as The U.S. Department of Homeland, legal services and  legal aid offices, district attorney, public defender, fellowships and private law firms.
  9. Kuehn’s description of National Association of Law Placement (NALP) existing information: such as the  2011 survey of lawyers with non-profit and government offices;  the NALP survey of lawyers in firms of predominantly more than 100 attorneys; the NALP survey of public interest legal employers;  and the NALP 2013 presentation on the employment market reporting that ” law firms say they want new graduates to have ‘more experiential learning, client-based and simulation.”
  10. Kuehn provision of good information on other employer information such as the Lexis-Nexis WHITE PAPER: HIRING PARTNERS REVEAL NEW ATTORNEY READINESS FOR REAL WORLD PRACTICEProfessor Neil Hamilton’s employer survey to determine the relative importance of twenty-one different competencies in employer hiring decisions, and Professor Susan Wawrose’s legal employer focus groups which found employers prefer new hires with ” well developed professional or ‘soft skills” along with “strong fundamental practice skills.”

Professor Kuehn concludes by recommending that studies could best be done on a school-by-school basis by “surveying likely employers to find out what educational experiences of students are most valued.”  Professor Kuehn also recommends that schools could also “retrospectively look at various employment outcomes for graduates and any relationship” to students’ experiences while in school.

I agree with Professor Kuehn and am happy to report that  Albany Law School,  through its faculty Assessment committee and Admissions office,  is currently engaged in conducting employer focus groups and analyzing what best helps our students obtain employment in their desired career paths.  Until good data and information suggests otherwise, Professor Neil  Hamilton’s advice to law students,which Professor Kuehn quotes in his “must read” article, bears repeating:

In this challenging market for employment, a law student can differentiate herself from other graduates by demonstrating to legal employers that the student both understands the core competencies that legal employers and clients want and is implementing a plan to develop these competencies, including an ability to demonstrate that the student has experience with these competencies.

Experiential Learning: ABA Standards 303 and 304

Although “experiential learning” has been a term of interest to many legal educators for years, the ABA’s new standards have brought it front and center by mandating that schools “require[] each student to satisfactorily complete at least . . . one or more experiential course(s) totaling at least six credit hours.”

Two well-known ways to meet the requirement are law clinics and field placements. Law schools across the country already widely offer both. But the third path to satisfying the requirement, “simulation courses,” is less familiar to many professors. So what do “simulation courses” require?

Standards 303 and 304 together define what a course must include to be a “simulation course.” First, and likely most importantly, the course must be “primarily experiential in nature.” According to a March 2015 ABA Guidance Memo on these standards, that means the course is essentially, mostly, or chiefly experiential and “the substantive law or doctrinal material . . . [is] incidental to [the course].”  The latter element is an important limitation: it could mean, depending on how the ABA interprets the standard, that even courses rich with simulation exercises are not a “simulation course” if the course is using simulations primarily to teach doctrinal law. In fact, the same guidance memo notes that “[i]nserting skills components in otherwise doctrinal courses” is great, but it does not necessarily mean the course falls under the “simulation course” umbrella. It would be unfortunate if highly experiential doctrinal courses along the lines of “The Practice of [Specific Doctrinal Area]” did not qualify under these standards simply because they were teaching students skills relevant to a particular area of the law.

Next, the course must provide “substantial experience not involving an actual client that is reasonably similar to the experience of a lawyer advising or representing a client or engaging in other lawyering tasks.” While many skills-based courses will meet this element—for example, courses focusing on interviewing clients, drafting legal documents, and mediation—other courses are more debatable. Is a course teaching students how to run a practice, manage cases, track time and bill, and related pragmatic skills “reasonably similar to the experience of a lawyer” under the standard? It is unclear, but a good argument can be made that it is—those skills fall under Standard 302‘s explanation of what skills a law school curriculum should foster, e.g. “organization and management of legal work” (interpretation 302-1).

The remaining requirements are more straightforward. The substantial experience must occur within “a set of facts and circumstances devised or adopted by a faculty member,” and there must be multiple opportunities for performance, feedback from a faculty member, and self-evaluation. Most courses that clear the above hurdles will naturally meet these. Similarly, the requirement that a faculty member directly supervise each student’s performance will also be met in most cases.

Finally, there must be “a classroom instructional component,” the class must integrate doctrine, theory, skills, and legal ethics, and the class must “engage students in performance of one or more of the professional skills identified in Standard 302” (e.g.  counseling, negotiation, trial practice, and many other professional skills). These requirements are relatively straight-forward but will pose a problem for some for-credit co-curriculars like moot court and trial team, which often do not require a classroom component beyond the team practices (which the guidance memo indicates will generally not be enough).  Interested parties can learn more in the guidance memo about how such programs can qualify for the experiential credits.

In sum, the revised ABA standards are breathing new life into experiential learning across the nation. Combined with the prospect of state-specific experiential learning requirements, mandatory experiential learning is here to stay. However, with attention to Standards 303 and 304 and study of the guidance memo, simulation courses are a third option for the required six credits.

Annual Leadership in Legal Education Issue of Univ. of Toledo Law Review Filled with Best Practices Nuggets

The new issue of the University Toledo Law Review is out, featuring its annual “virtual symposium” on legal education by law school deans. These annual issues should be read not just be deans and people who are thinking about pursuing a law school deanship, but they should be read by college and university presidents and provosts, members of law school boards of trustees and advisory boards, senior administrative staff, and most important, by law school faculty. The articles in each volume, taken together, offer terrific insights into current challenges facing legal education, interesting historical background on various aspects of legal education, and innovative ideas to shape the future of law schools and legal education. The winter 2015 volume is no exception.

While I will not address all twelve of the articles/essays in this brief review, I do want to highlight several important themes in four pieces. Beginning with the opening contribution by two-time former dean Peter C. Alexander (Indiana Tech and Southern Illinois), more than mere references to “best practices” principles abound. One of Alexander’s assertions is that law schools, in “the new normal” must do more to create “practice ready” graduates as part of the ongoing curricular reform taking place. He also suggests, “Faculty members have to design new methods of instruction and create new pathways for students to learn….Deans must make funds available for faculty members to learn how people learn and how to teach the current generation of students.” (p. 263) This is an astute observation and one not lost on many in the academy. Most of us on the law faculty did not receive any formal education or degree in pedagogy. While those who work with students from pre-K through 12th grade must be certified as teachers after formal baccalaureate and post-baccalaureate training, there are no such requirements in higher education. Few, if any, dispute that in law school the learning styles of our students has changed over time, and this challenges law faculty to more attune to the need to change our teaching methodologies.

Another piece written by Professor George Critchlow, former interim dean and former director of the clinical programs at Gonzaga University School of Law, focuses on ensuring that legal education in a broad sense is accessible to those who wish to serve the public good – including non-lawyers (a good and controversial read). In his discussion on affordability, Critchlow reviews a number of ideas that have been circulating for years including, but not limited to: law schools partnering with legal services organizations and firms (resembling aspects of the medical school model); a discretionary third year program that consists entirely of a practice-oriented experience; participation by law schools with apprenticeship programs that allow or encourage students to engage in actual work outside of the law school in addition to classes (this goes well beyond the current law school supervised externship and clinic experiences); and cost savings to clinical programs by entering into “hybrid” arrangements with community based legal service providers.

A theme in Critchlow’s article is picked up in greater detail in an article by IIT Chicago-Kent College of Law dean Harold J. Krent and director of clinical legal education Gary S. Laser. Krent and Laser focus on meeting the experiential challenge through the operation of a fee-generating law clinic. By highlighting the example of the IIT Chicago-Kent model which in essence is organized as an in-house law office, the authors point out that students are exposed not just to the traditional live client experience of a clinic, but they develop an appreciation for the economics of law practice. This is important given the increasing attention that many law schools are giving to the business aspects of running law offices, whether it be through the incubator movement, the addition of courses on law office management, and the introduction of business skills to the curriculum.

The symposium ends with an essay by UC Hastings College of Law Dean Frank Wu which I highly recommend everyone read. Dean Wu offers his prescription for reforming law schools, much of which I will not address here due to space and my focus on best practice. Wu states, “A lawyer should be like a doctor. There is no medical school graduate who altogether lacks clinical experience. Every licensed physician has seen a live patient presenting actual symptoms before charging anyone for a diagnosis. Yet some law school graduates manage to do quite well by book learning alone. They need not interview, counsel, or draft, to earn honors, if their exams and seminar papers are good enough.” (p. 420) He discusses the increasing importance of the need for the academy and the profession to understand and appreciate the impact that technology is having and will have on the future of the practice of law and lawmaking. Wu addresses the ongoing and long-time debate over the profile of law professors as practitioners or intellectuals. (p. 440) In addressing the costs of change, Dean Wu asserts that the most expensive and most worthwhile change we have “recently” made in legal education is clinical legal education.

Every year I find fascinating the articles and essays published by the Toledo Law Review in their special “deans” issue. I am surprised that many people do not know that this annual symposium exists. It is a good read that should not be missed.

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